Going through a divorce is a stressful experience for everyone involved. In most cases, one of the most challenging personal and legal aspects of this process is dividing a couple’s marital property. The more assets involved, the more likely it is that the process of financial and property division and allocation will be complex.
Just as no two married couples are alike, nor can one expect that any two divorcing couples will have a similar experience in completing their property division process. As a result, if you’re divorcing, you’ll need to keep an open mind about how best to approach that process from your perspective so that you and your attorney seek proposed orders with the best long-term prospects for you. When moving forward, you’ll need to tackle the concerns of dividing the total value of your marital personal and real property, dividing pensions and 401Ks, and dividing the debts that have accumulated since you tied the knot. The first step in either process involves identifying what is at stake.
Consider the value of marital assets
One of the first things you’ll need to do is provide your attorney with a comprehensive list of all your marital assets that must be divided. This list should include the nature, source and fair market value of each asset. That information will be vital as you try to ensure the property is divided fairly.
As you go through the property that has to be divided, you must do your best to distinguish what is martial property and what may not be. Be sure to identify to your attorney any property which you obtained before the marriage, any property which you maintained separately, and any property which you inherited. During the property division process, the court has the discretion to decide what constitutes marital property and what does not. In many cases, premarital, separate and inherited property is the subject of vigorous dispute, so prepare for that possibility if you think your ex will try to lay a claim to those kinds of assets.
Factor in all of your marital debts
The total accumulated debt incurred during the marriage must also be addressed thoughtfully. The statutory presumption in long-term marriages is that marital property and debt should be divided 50/50, subject to certain specific exceptions which the court can consider in arriving at its decision. The allocation of debt is often used by the court during the property division process to balance the property award, either by ordering that the debt be paid off by liquidating a portion of the marital assets, or assigning the debt to one spouse to pay on their own.
Family courts do not have the authority to bind your third-party creditors, so you and your ex will likely continue to be held accountable for jointly held long-term debts to creditors if not paid off in full at the conclusion of your divorce. Because creditors aren’t parties to a divorce case, their rights cannot be limited or eliminated by a family court order. Depending upon how financially responsible your ex is, this could mean your credit may be negatively impacted if they don’t pay their assigned portion of the debt.
Taking the time to become fully informed, and to explore all your options early in the process will always put you in a better position to make sound decisions which are in your best interests. It is important to seek the advice of an attorney experienced in divorce litigation to help you better determine how your choices during the property division process will affect you now and into the future.